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Kayyem, J N --- "The Other Students: Teaching the 'War on Terror' to Nonlawyers" [2006] LegEdDig 22; (2006) 14(4) Legal Education Digest 7

The Other Students: Teaching the ‘War on Terror’ to Nonlawyers

J N Kayyem

[2006] LegEdDig 22; (2006) 14(4) Legal Education Digest 7

55 J Legal Educ 1 & 2, 2005, pp 57–64

The author teaches a law course titled US Security, the Law and Justice, a survey of the basic legal structure governing America’s ability to protect itself from security threats. In many respects, it is not a particularly unusual course. Law schools have been scrambling to respond to student interest in terrorism, national security and intelligence matters since the terrorist attacks on September 11, 2001.

The course focuses on four areas. First, it examines the question What law? by exploring the framework of constitutional law in which separate branches share national security powers. The course then examines the domestic and legal context for options available to the government when it acts abroad, most notably in cases of war. The third section explores the broad concept of maintaining national security at home, looking at the sources of and limits on domestic emergency powers and law enforcement activity. Finally, the course looks at Crime Versus War: the choice of forum conundrum, examining the difficulties with national security cases and specific instances in the ‘war on terror’.

For a law course, this sounds pretty typical. What is not so typical is that this is not a law school course. It is taught at the Kennedy School of Government at Harvard University, a public policy school filled with students who are learning management and policy skills. In particular, the students are mostly national security students who come from or are going to military, intelligence and diplomatic services. In general, public policy students are no different from most law students, except in their experiences, which are much more varied than those of students at many law schools.

A major benefit of teaching law to non-law students is that the law becomes demystified and less vilified over the course of the semester. The demystification of the law animates non-lawyers to engage in rigorous legal examination. Most law students have worked with lawyers and with general counsels’ offices. They recognise that law is a different language, calling on different skills. They know that taking a single course will not take the field away from the lawyers, but they believe they have been at a significant disadvantage not even knowing the discourse.

The author has struggled with the dilemma of trying to show respect for the law at a time when it does not seem to have much resonance in political and legal circles and when it seems easily circumvented (or interpreted) by other legal reasoning. Is there still a legal regime to teach in a war on terror? Why study the law when it seems to be so, well, weak?

It is not easy to dispel this anxiety, for some anxiety is well justified. Whatever a law student’s crises of confidence or questions about the relevance or enforceability of the law in time of war, they will be creatures of their profession, with its insights and even prejudices. Few of them will become national security lawyers specifically, and so the anxieties generated in a course on law and security would not strike them as different from anxieties that arise in every other class. Public policy students are different. Many are operational players whose conduct will be governed by respect for the law, however it might be defined.

One answer to the dilemma is that the law is a tool to be used in policy discussions that determine what policy should be. In this way, the law is no different from any other analysis these students might encounter in their courses: it is part of a process of making the best (or most workable) public policy option.

The policy students can understand politics. It is easy to say that all this law talk is just cover, made-up discourse masking pure policy disagreement. Students come to realise they need better reasons why all the players in the game want to talk the new law talk. Non-law students can begin to understand that the law serves as a marker, in advance, before an actual dispute arises. It can signal the need for congressional consultation and involvement. It sets up some initial rules of the game that serve to restrain an actor — the President — who, everyone knows, is likely to hold all the cards in the time of a crisis.

Public policy students, like most first-year law students, have difficulty separating the essential from the peripheral. But a mere focus on the cases loses much of what makes it important for public policy students to learn the law.

Teaching national security law to public policy students improves public policy practitioners’ understanding of and relation to the law. Students exposed to statutes and relevant authorities may be more inclined to actually read the law that governs their conduct. They may also be more prone to question whether the assumptions that underlie a public policy position are truly legal dictates or mere policy discretion. In the same vein, lawyers who teach law to non-law students are likely to value its import, especially as regards national security issues.

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